Citation Nr: 1321697 Decision Date: 07/08/13 Archive Date: 07/18/13 DOCKET NO. 09-46 295 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a right shoulder (minor) disability. 2. Entitlement to service connection for a left knee disability. 3. Entitlement to an increased rating in excess of 30 percent for right elbow epicondylitis, right wrist torn ligament repair (minor). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Emily L. Tamlyn, Counsel INTRODUCTION The Veteran served on active military duty from November 1981 to 1984. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in St. Petersburg, Florida. In that decision, the RO continued the current rating of 30 percent for "for right elbow epicondylitis and right wrist torn ligament repair, (minor)" and denied claims for service connection for right shoulder and left knee disabilities. In April 2010, after perfecting his appeal, the Veteran submitted a statement stating: "Then I want to withdraw any claim for right shoulder injury since I know I missed the one year deadline." The Veteran had not missed any deadline. Since his withdrawal was based on an incorrect premise, the Board does not find that he made an informed decision to withdraw that issue from appeal. In July 2011, the Veteran failed without explanation to report for a Board hearing at the RO. The hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d) (2012). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In January 2009, the RO requested records from the Social Security Administration (SSA). In a response the same month, SSA reported that it was unable to locate medical records for the Veteran. SSA did not report whether there were any other available records, such as decisions made by SSA. In October 2009, Dr. J.C. sent a record dated August 2009 for the Veteran, explaining that the Veteran was seen just one time for a SSA disability evaluation (the Veteran was not a long-term patient). VA is on notice that other SSA records were created after the initial January 2009 request. These records are not in the file. It is unclear whether these records relate to an issue on appeal; Dr. J.C.'s evaluation addressed the right upper extremity and the left knee leading to the inference that more SSA records address these issues. The duty to assist requires that such records must be requested where they may be relevant to the issues on appeal. See Golz v. Shinseki, 590 F.3d 1317, 1320-23 (Fed. Cir. 2010). Efforts to obtain records in the custody of a Federal entity must continue until the records are obtained, unless it is reasonably certain that they do not exist or that further efforts would be futile. 38 U.S.C.A. § 5103A(b)(3) (West 2002). It is not reasonably certain that additional SSA records are unavailable. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The types of evidence that indicate that a current disability may be associated with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon, 20 Vet. App. at 83 (2006); cf. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that continuity of symptomatology can establish a relationship between a current disability and service only if that disability is a chronic disease listed in 38 U.S.C.A. § 1101). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. Here, the Veteran is alleging that he has a right shoulder disability that started in service (see April 2008 statement) and was injured at the same time as his other service-connected right upper extremity disabilities (see October 2008 notice of disagreement). In December 2008 (see VA primary care record) he stated he had right shoulder pain. This evidence crosses the low threshold for providing an examination. An examination is needed so that a medical professional can review the record and determine whether any current right shoulder disability is related to service. In June 2010, the Veteran underwent his most recent VA examination to evaluate the severity of his right elbow disability. The examination did not fully address the neurological aspect of the Veteran's disability. Also, disabilities evaluated on the basis of limitation of motion require VA to apply the provisions of 38 C.F.R. §§ 4.40, 4.45 (2012), pertaining to functional impairment. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, pain, or flare-ups. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, incoordination, flare ups, or pain. The examiner should also determine the point, if any, at which such factors cause functional impairment. Mitchell, 25 Vet. App. at 43-4 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2012). At no point has an examiner clarified whether there is additional limitation of motion due to flare ups, pain, stiffness, effusions, weakness, decreased joint speed, and tenderness of the wrist, elbow and forearm (all things found at the July 2008 and June 2010 VA examinations). Evidence in the file shows the Veteran is currently incarcerated. VA has an obligation to tailor its assistance, including scheduling examinations, for the circumstances of incarcerated veterans. See Bolton v. Brown, 8 Vet. App. 185 (1995); M21-1MR, Part III, Subpart IV, Chapter 3, Section A.11.d (2012). Accordingly, the case is REMANDED for the following action: 1. Obtain records pertaining to the Veteran's claim for SSA disability benefits, including any SSA decisions and the medical records relied upon in making that decision. Efforts to obtain these records must continue until they are obtained, unless it is reasonably certain that they do not exist or that further efforts would be futile. If any requested records cannot be obtained, inform the Veteran; and tell him of the efforts made to obtain the records and of any further actions that will be taken with regard to the claim, including the possibility that the claims will be denied. 2. Afford the Veteran a VA examination to determine whether any current right shoulder disability had its onset in service or is otherwise related to a disease or injury in service. The examiner should review the claims folder and note such review in the examination report or addendum. The examiner is advised that the Veteran is competent to report his symptoms and injuries; his treatment, and diagnoses that were related to him by medical professionals. If the examiner rejects the Veteran's reports, the examiner should provide reasons for doing so. The examiner should reference: * July 1982 service treatment record showing original injury to right hand and fingers due to a piece of steel falling on them, normal X-rays recommendation for normal duty days later; * August 1982 service treatment record showing a complaint of pain in the right arm and shoulder with straining; * May 1983 service treatment record noting he still had pain to right elbow when lifting objects that sometimes radiated into the shoulder; * October 1984 report of medical history showing he stated he had a painful or "trick" shoulder or elbow and the physician's summary showed tennis elbow only; * February and October 1986 as well as March 2000 VA examination reports showing an inaccurate history given by the Veteran; * September 1989 VA physical examination showing only complaints and injury regarding the left shoulder; * January 1993 VA neurological examination for the right upper extremity which states: "The arm above the elbow is relatively spared;" * December 2007 VA primary care record noting the Veteran had an intervening car accident in 2002; * August 2009 Dr. J.C. evaluation noting the Veteran didn't remember his medical history well. The examiner should provide reasons for all opinions that take into account the Veteran's reports. 3. Schedule the Veteran for an examination to determine the current severity of his right elbow epicondylitis, right wrist torn ligament repair (minor). Relevant records in the claims folder and a copy of this remand must be made available to the examiner in conjunction with any examination or review. The examination report should reflect that the claims folder was reviewed. Necessary tests should be conducted. Any symptomatology shown to be present and due to the service-connected right elbow epicondylitis and right wrist torn ligament repair (minor) should be reported. The examiner should report all range of motion measurements, including flexion and extension, for the right wrist and elbow in degrees, noting any pain on motion that the Veteran experiences. The examiner should note whether the Veteran's right elbow or wrist disability is manifested by weakened movement, excess fatigability, incoordination, pain or flare-ups. The examiner should estimate the additional limitation of wrist or elbow motion in degrees that is caused by weakened movement, excess fatigability, incoordination, pain or flare-ups. The examiner should list all neurological impairment caused by the service-connected disability. All nerves affected should be stated and the severity of the impairment should be discussed. Reasons for any opinion expressed should be provided. 4. In scheduling the Veteran for examinations the agency of original jurisdiction should consider whether it is feasible to provide an examination at the prison by VHA personnel, prison medical providers at VA expense or fee-basis providers contracted by VHA. M21-1MR, Part III, Subpart IV, Chapter 3, Section A.11.d (2012). 5. If the decision remains in any way adverse to the Veteran, issue a supplemental statement of the case (SSOC). The case should then be returned to the Board, if otherwise in order. No action is required of the Veteran until he is notified by the RO; however, the veteran is advised that failure to report for any scheduled examination may result in the denial of his increased rating claim. 38 C.F.R. § 3.655 (2012). The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).